People v. Cooper CA2/1 ( 2020 )

Filed 8/21/20 P. v. Cooper CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B293044
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA094945)
v.
MARK COOPER,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Laura L. Laesecke, Judge. Reversed and remanded for
resentencing.
David L. Annicchiarico, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Acting
Assistant Attorney General, Michael R. Johnsen and Blythe J.
Leszkay, Deputy Attorneys General, for Plaintiff and
Respondent.
____________________
This is defendant Mark Cooper’s second appeal following
his convictions for first degree murder and eight other offenses.
In his first appeal, we reversed two of his nine convictions and
one firearm enhancement, vacated his sentence, and remanded
for resentencing. We directed the trial court to, inter alia,
consider whether to exercise its newly enacted discretion to strike
some or all of the remaining firearm enhancements.
While Cooper’s first appeal was pending before us, the
trial court held a hearing at which it increased Cooper’s custody
credits, imposed fines it had not imposed orally at his original
sentencing, and declined to strike his firearm enhancements.
Cooper appeals from those orders.
The parties agree the trial court was without jurisdiction to
modify the sentence while Cooper’s appeal was pending. The
Attorney General argues that remand for resentencing is
unnecessary, however, primarily because the trial court made
clear that it would not strike the enhancements even with proper
jurisdiction.
Our decision in the first appeal, however, vacated Cooper’s
sentence in its entirety. The trial court has not yet had the
opportunity to reevaluate Cooper’s sentence in light of our
decision in the first appeal. Accordingly, we reverse and remand
for resentencing consistent with our earlier decision.
FACTUAL BACKGROUND
The facts underlying Cooper’s convictions are not relevant
to the issues in this appeal and therefore a detailed summary is
unnecessary. Briefly, Cooper and three confederates entered a
drug dealer’s home, ostensibly to purchase marijuana, but then
drew guns and proceeded to rob the drug dealer and others in the
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home. When the victims resisted, Cooper threw his gun to one of
his confederates who then opened fire with it, killing one victim.
PROCEDURAL BACKGROUND
1. Conviction and sentencing
A jury convicted Cooper of first degree murder while
engaged in the commission or attempted commission of robbery
or burglary (count 1), two counts of attempted murder (counts 2
and 3), one count of assault with a firearm (count 4), four counts
of robbery (counts 5, 6, 7, and 8), and one count of burglary
(count 9). On all counts except count 4, the jury found true the
allegation that Cooper personally used a firearm within the
meaning of Penal Code1 section 12022.53, subdivision (b); on
count 4 the jury found true the allegation that Cooper personally
used a firearm within the meaning of section 12022.5,
subdivision (a).
For count 1, first degree murder, the trial court sentenced
Cooper to life without the possibility of parole plus 10 years for
the firearm enhancement. For counts 2 and 3, attempted
murder, the trial court imposed an additional indeterminate term
of 14 years to life plus 20 years for the firearm enhancements.
For the determinate portion of the sentence, the trial court
chose count 6, robbery, as the principal base term, selecting the
midterm of six years plus 10 years for the firearm enhancement.
The trial court then imposed one-third that sentence, or five
years, four months, for each of robbery counts 7 and 8. The
1 Undesignated statutory citations are to the Penal Code.
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trial court imposed but stayed sentences on counts 4, 5, and 9
pursuant to section 654.2
When it orally pronounced judgment, the trial court did not
impose restitution or parole revocation fines. The minute order
for the sentencing hearing, however, imposed both fines in the
amount of $5,000 each.
2. First appeal
In Cooper’s first appeal, B283492, decided November 28,
2018, we reversed two of the robbery convictions (counts 7 and 8),
concluding the victims of those counts did not have a possessory
interest in the stolen marijuana. We also reversed the firearm
enhancement on count 4, assault with a firearm, because it was
Cooper’s confederates, not Cooper himself, who assaulted the
victim of that count.
We further concluded that remand was necessary for the
trial court to exercise its discretion whether to strike the
remaining firearm enhancements under then recently enacted
section 12022.53, subdivision (h). We also instructed the
trial court on remand to add to Cooper’s custody credits the time
he spent in custody outside of California.
The parties agreed that the trial court’s oral
pronouncement of judgment omitting restitution and parole
revocation fines governed rather than the written minute order
that imposed those fines. Cooper argued the fines should be
stricken; the Attorney General argued for remand to allow
the trial court to exercise its discretion to impose the fines.
2 The trial court later modified the stayed portions of the
sentence, including striking the firearm enhancement from
count 9.
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We concluded the Attorney General had forfeited the issue by not
raising it in the trial court, and therefore we declined to consider
it.
Our opinion’s disposition reiterated the reversals of the two
robbery convictions and one firearm enhancement. We then
stated, “In all other respects the judgment is affirmed. The
sentence is vacated, and the case is remanded to the trial court
for resentencing, including whether to exercise its discretion to
strike the firearm enhancement pursuant to section 12022.53,
subdivision (h).” (People v. Cooper (Nov. 28, 2018, B283492)
[nonpub. opn.].)
3. Hearing in trial court during pending appeal
On September 19, 2018, while Cooper’s appeal was pending
before us, the trial court held a hearing at which it addressed
certain aspects of his sentence that had been brought up in the
appellant’s and respondent’s briefs.
The trial court increased Cooper’s credits and orally
imposed a $5,000 restitution fine and $5,000 parole revocation
fine. The trial court then heard argument as to whether to strike
the firearm enhancements.
After argument, the trial court chose not to strike the
firearm enhancements. The trial court stated, “I remember the
circumstances inside of the house, it’s scary, there was a gun,
victims were very frightened. I think it’s appropriate, and I’m
choosing to exercise my discretion to leave the sentence as I
originally sentenced him which included the gun use.”
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DISCUSSION
The parties agree the trial court lacked jurisdiction to
modify the judgment while Cooper’s appeal was pending, and
therefore the trial court’s orders at the September 19, 2018
hearing are void. (People v. Alanis (2008) 158 Cal. App. 4th 1467,
1472–1473 [“Because an appeal divests the trial court of subject
matter jurisdiction, the court lacks jurisdiction to vacate the
judgment or make any order affecting it. [Citations.] Thus,
action by the trial court while an appeal is pending is null and
void.”].) We nonetheless have jurisdiction over the appeal from
those void orders. (Id. at pp. 1476–1477.)
Cooper argues we should reverse the trial court’s order
declining to strike the firearm enhancements and remand for a
new resentencing hearing on that issue only. Cooper reads our
opinion in his first appeal as ordering the trial court to “strike the
[restitution and parole revocation] fines,” which Cooper says we
may do on our own authority without remand. Cooper’s briefing
does not address what should be done about the trial court’s
order increasing his custody credits.
The Attorney General argues remand for resentencing is
unnecessary because the trial court clearly indicated it would not
strike the firearm enhancements, and therefore we should “affirm
the judgment as to [those] enhancements.” The Attorney General
agrees with Cooper that the trial court’s imposition of restitution
and parole revocation fines was not only void, but “contrary to
this Court’s holding” in the first appeal, and thus those fines
should be stricken under the law-of-the-case doctrine. The
Attorney General contends the trial court could modify Cooper’s
custody credits “as part of its inherent power to correct clerical
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errors,” and therefore remand on that issue is unnecessary as
well.
The parties’ arguments appear to assume that we
remanded in the first appeal solely on the issues of the firearm
enhancements and the custody credits. That is incorrect; as our
disposition stated, we vacated the entire sentence, and “remanded
to the trial court for resentencing, including whether to exercise
its discretion to strike the firearm enhancement . . . .” (Italics
added.)
Thus, on remand, the trial court would be free to consider
not only whether to strike some or all of the firearm
enhancements, but also, inter alia, whether to modify the
sentence on the remaining convictions after we had reversed two
of the robbery convictions and one of the firearm enhancements.
The trial court has not yet had the opportunity to do so. Nor can
we conclude the trial court would inevitably follow the same
course it did in the September 19, 2018 hearing, when it made
those determinations without the benefit of our decision in the
first appeal.
The parties also mischaracterize our decision in the first
appeal as striking the restitution and parole revocation fines.
We did no such thing. We merely declined to address the
Attorney General’s arguments on the issue, deeming them
forfeited. Thus, the law-of-the-case doctrine does not apply, and
the trial court may address the issue of fines anew when it
resentences Cooper. Consistent with our decision in the first
appeal, the trial court must also award Cooper credit for time
spent in custody outside California.
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DISPOSITION
The September 19, 2018 orders are reversed. Cooper’s
sentence remains vacated in its entirety, and the case is
remanded for resentencing consistent with our opinion in
B283492.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
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